IF you acquired permanent resident status through a marriage of less than two (2) years, you are a conditional permanent resident. You and your spouse must file a joint Petition to Remove Conditions within ninety (90) days before the 2nd year anniversary of the date of your adjustment or the date of your arrival in the United States with an immigrant visa, as a conditional resident. Failure to do so may result in harsh consequences resulting not only in the termination of your permanent resident status but also in your deportation or removal from the United States. Same rules apply to any of your dependent child(ren) who acquired conditional residence together with you or immediately thereafter.
The joint petition must be filed with the USCIS Service Center either in California or Vermont, depending on your residence. If the USCIS Service Center accepts your joint petition as properly filed, your conditional permanent resident status is automatically extended until the Service Center completes review of your evidence and adjudicates on the validity of your marriage. You – the conditional permanent resident – and your spouse must establish that you entered into the marriage in good faith and with the intention of establishing a life together as husband and wife – and not merely for purposes of obtaining an immigration benefit or a green card, or evading the immigration laws of the United States.
The joint petition should include supporting evidence proving that in the past two (2) years or so, you and your spouse have been living in a marital relationship. Supporting evidence includes but is not limited to birth certificate(s) of children born of the marriage, joint ownership of property, proof of joint residence, tax returns, bank accounts, life insurance, and other documents showing the marital relationship between you and your spouse.
The Service Center will review the joint petition and supporting evidence, and you and your spouse may be scheduled for an interview. The interview may be waived if the Service Center is satisfied you have submitted enough evidence to establish your marriage is bona fide and was not for the purpose of evading the immigration laws. However, if the Service Center is not convinced, it may issue a request for additional evidence and/or forward the joint petition to a USCIS local District Office for interview and/or adjudication. Upon receipt of the joint petition, the local District Office may also conduct an investigation through its anti-fraud unit.
If the joint petition is filed after the 2nd year anniversary, it is untimely filed and the Service Center will consider it only if there is an explanation showing good cause and/or extenuating circumstances to excuse the late filing. Examples of good cause include but are not limited to: long term illness, hospitalization, death in the family, recent birth of a child, or deployment of a family member who is in the military. If you do not submit a written and documented explanation for your late filing, the Service Center will outright deny the joint I-751 petition.
If the joint petition is approved, the conditions on permanent residence are removed and the conditional permanent resident will be issued a permanent resident card valid for ten (10) years. On the flip side, If the joint petition is denied, it will result in the issuance of a Notice to Appear directing the conditional permanent resident to appear before an Immigration Judge, for deportation or removal.
The requirement of joint filing to remove conditions may be waived only under three (3) situations: the marriage was in good faith but has been terminated through divorce or annulment; you or your child was abused or battered, even if the marriage has not been terminated; and immediate family members will suffer extreme hardship if the conditional permanent resident is removed or deported from the United States.
In October 2009, USCIS issued a Memorandum known as the Neufeld Memorandum providing rules and procedures for adjudicating petitions where the conditional permanent resident filed an unexcused late petition or multiple petitions, or where the conditional resident is already in removal proceedings or has a final order of removal. The Memorandum directs USCIS field officers to treat unexcused late filings or multiple filings as red flags for possible fraud, and should be thoroughly checked and investigated.
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Atty. Aurora Vega is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, Sacramento, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; auvega@ctvattys.com
